ADA seeks extension for ACA mandate

July 19, 2016

By Jennifer Garvin

Washington — The Association has asked the U.S. Department of Health and Human Services Office for Civil Rights for an extension of the implementation deadlines for the recently released final rule issued under Section 1557 of the Affordable Care Act.

Section 1557 prohibits discrimination in health care on the basis of race, color, national origin, age, disability and sex, including discrimination based on pregnancy, gender identity and sex stereotyping. According to OCR, it is the first federal civil rights law barring discrimination on the basis of sex in health care. The rule, which was implemented July 18, applies to health care providers who receive certain funds through the U.S. Department of Health and Human Services, including Medicaid and the Children's Health Insurance Program. It does not apply to providers who only receive reimbursement under Medicare Part B, but as of July 18 the agency had not clarified whether the rule applies to dentists who receive reimbursement under Medicare Part C, also known as Medicare Advantage.

In a letter to Jocelyn Samuels, OCR director, ADA President Carol Gomez Summerhays and Executive Director Kathleen T. O'Loughlin urged the agency to delay the enforcement date so that dentists will have sufficient time to meet the requirements.

The timeline of activities surrounding the final rule include:

The Office for Civil Rights publishes a notice of proposed rulemaking in the Federal Register on Sept. 8, 2015.

ADA comments on the proposed rule on Nov. 2, 2015.

OCR publishes final rule on May 18 with an implementation date of July 18. The compliance date for posting notices and taglines is Oct. 16.

Beginning in June, ADA contacts OCR to discuss implementation issues and concerns for dental practices, especially those that participate in public programs such as Medicaid and Medicare. OCR does not respond to all of ADA’s questions.

ADA sends a letter to Jocelyn Samuels, OCR director, on July 18 asking for a delay in the implementation of the final rule. ADA also asks for responses to its questions and for relief for smaller dental practices.

In the letter to Ms. Samuels, Drs. Summerhays and O'Loughlin noted that since 70 percent of ADA members practice in solo settings and employ an average of 4.9 employees, compliance within the "extremely short timeline afforded by the OCR" is difficult.

The Association is also concerned that the final rule "risks further limiting patient access to care, particularly in impoverished communities, because health care providers may hesitate to accept the extra compliance burdens and liability risks that the final rule imposes on providers who participate in government health care programs," they wrote.

The ADA had previously raised similar concerns, among other objections, when the rule was originally proposed, but the concerns did not appear to have been addressed in the final rule. Requests for technical assistance in using OCR tagline resources have also not been addressed.

"For these reasons, the ADA respectfully requests a delay in the enforcement date until there is sufficient time to allow for our members to meet the requirements," the letter concluded. "We additionally ask relief for our members working in small practice settings and request the most burdensome regulations be limited to those who employ 25 or more staff."

To minimize the administrative burden for member dentists who are covered entities, the ADA has prepared resources to aid in compliance with the rule, including an FAQ and checklist. Visit Success.ADA.org/1557resources. There are also sample materials available on the OCR's website.

For more information, visit the OCR's website and search Section 1557.